Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

A divided federal appeals court has upheld a school resource officer's arrest and handcuffing of a New Mexico 7th grader for disrupting his class with "fake burps."

A panel of the U.S. Court of Appeals for the 10th Circuit, in Denver, ruled 2-1 that the officer was immune from liability because it was not clearly established that the student's classroom disruptions were not in violation of a New Mexico law that prohibits interference with the "educational process" at any public or private school.

The majority also upheld qualified immunity for the officer regarding his use of handcuffs when he took the 13-year-old, identified in court papers as F.M., to a juvenile detention center.

The incident at Cleveland Middle School in Albuquerque, N.M., began in May 2011 when F.M. disrupted his physical education class, which was meeting in a regular classroom on the day in question because students were giving presentations.

Court papers say teacher Margaret Mines-Hornbeck had ordered F.M. into the hallway because of his fake burps and other distractions. The student leaned into the classroom doorway and continued to make burping noises and causing his classmates to laugh.

At that point, the teacher radioed to the school resource officer, Arthur Acosta of the Albuquerque Police Department, to come to the hallway. The teacher asked Acosta to remove F.M. because she could not control him.

Acosta brought the student to the school office, but soon after decided to arrest him for violating the state statute about interfering with school. Although F.M. was handcuffed and taken to the juvenile justice center, it appears that his mother picked him up soon after, and he faced no juvenile charges. F.M. was suspended for a day for the incident, and he did not return to the school that academic year.

F.M.'s mother, identified as A.M., filed a lawsuit after a second incident in which the student, who returned to the middle school the next year, was suspected of selling marijuana to classmates. School employees had searched F.M., including an inspection of his waistband, but found no marijuana. The mother's lawsuit said the search was unreasonable under the Fourth Amendment. But a federal district court and the 10th Circuit court panel, unanimously, upheld immunity for school officials in the search.

As for the arrest and handcuffing in the classroom disruption incident, the lawsuit alleged that Acosta's actions violated settled law because the student's behavior was not the serious interference with school contemplated by the New Mexico statute.

"At worst, F.M. was being a class-clown and engaged in behavior that would have subjected generations of school boys to an after-school detention, writing lines, or a call to his parents," the suit said.

But the district court ruled that the officer had immunity, and the appeals court majority agreed.

In its July 25 decision in A.M. v. Holmes, the 10th Circuit court said the effect of F.M.'s conduct "was not merely to disturb the good order of Ms. Mines-Hornbeck's classroom; rather, it was to bring the activities of that classroom to a grinding halt."

The majority rejected arguments that the officer should have been guided by a 1974 New Mexico appeals court ruling that had interpreted a state statute about disrupting colleges as requiring interference with a school as a whole, rather than a single classroom, to be a violation. The language of the statute about college disruptions was nearly identical to that regarding K-12 schools, but the majority said the 1974 ruling didn't interpret the K-12 law.

"In sum, we hold that it would not have been clear to a reasonable officer in Officer Acosta's position that his arrest of F.M. under [the New Mexico statute] would have been lacking in probable cause and thus violative of F.M.'s Fourth Amendment rights," Judge Jerome A. Holmes wrote for the majority.

Holmes said the majority was "neither oblivious nor unsympathetic to the potential future consequences to a child, such as F.M., of an arrest or other law-enforcement sanction for seemingly non-egregious classroom misconduct," but "it ultimately is not our place to question or undermine the New Mexico legislature's policy choice to criminalize interference with the educational process."

Because F.M.'s mother sued only the officer (and the school administrators in the search incident) and the courts ruled that the defendants were immune, that is likely the end of her case, unless the full 10th Circuit court or the U.S. Supreme Court take it up.

Writing in dissent, Judge Neil M. Gorsuch said that a student's classroom disruption that would have once resulted in a trip to the principal's office and detention is now leading to the involvement of the police.

"And maybe today the officer decides that, instead of just escorting the now-compliant 13-year-old to the principal's office, an arrest would be a better idea," Gorsuch said. "So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option. ... Respectfully, I remain unpersuaded."

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